Moazzam Hayat, Member.--Appellant Muhammad Qamaruz-Zaman was Postmaster Rohtas Road, Jhelum. He was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 and was awarded the penalty of dismissal from service vide order dated 26.04.2011. He filed departmental appeal on 25.05.2011. Since he had rendered 35 year service the departmental appellate authority controverted the penalty of dismissal into his compulsory retirement vide order dated 09.08.2011. This order was conveyed to him on 26.09.2011. Hence this appeal.
2. The appeal was time barred since the order of the departmental appellate authority was received by him on 26.09.2011 whereas the present appeal was filed on 31.10.2011. However, an application for condonation of delay has been filed by the appellant. For reasons mentioned therein the delay is condoned.
3. It is stated by the respondents that the appellant had admitted temporary embezzlement and he was awarded the penalty in question strictly in accordance with law.
4. We have heard the learned counsel for the respective parties and have also perused the record.
5. The appellant had rendered 35 years in the service of the respondent-department. It was for that reason that the penalty of dismissal, awarded to him, was converted into his retirement by the departmental appellate authority vide order dated 09.08.2011. According to the appellant even this penalty was not legal since the competent authority had passed the order of dismissal from service after obtaining approval from the Deputy Postmaster General who was the appellate authority. We have seen the dismissal order. Instead of applying his own mind the competent authority had taken approval from the Deputy Postmaster General for awarding penalty of dismissal. The competent authority should have acted on his own since this was the requirement of law that he should not have been dictated by any officer senior to him. The principle of justice requires that justice should not only be done but must appear to have been done. In the present case this principle was violated since the competent authority had passed the original penalty of dismissal from service by getting approval of his immediate senior who had definitely no role in the proceedings.
6. The other illegality committed by the competent authority was that he had not appointed any Authorized Officer. It is true that in all cases Authorized Officer may not be appointed and the competent authority may proceed against the civil servant on its own but in the instant case Authorized Officer should have been appointed. Serious charge had been levelled against the appellant. No inquiry was held against him. Had there been an Authorized Officer the appellant would have been given an extra channel wherein he could make his grievances. It could be that Authorized Officer had given him lesser punishment or at least would have made his recommendations to the competent authority. We have already decided Appeal No, 360(R)CS/2011 on 06.07.2011. The relevant parts of the judgment dated 06.07.2011 are reproduced verbatim:-- "5. The main contention of the appellant is contained in para-c of the Grounds mentioned in his memo of appeal. It reads: "c. That the Respondent No, 1 acted as an authorized officer and authority in dual capacity and awarded major and minor penalty through his impugned order dated 21.10.10. That as per circular issued by the Director General Pakistan Post Offices, Islamabad dated 15th November-1997 and a good many judgments of Federal Service' Tribunal and Supreme Court of Pakistan, an officer working as an Authorized Officer cannot perform as an Authority. No officer can perform in Dual Capacity. If major penalty is suggested, the case should be referred to next higher authority under Rule-5 (1) (iv) of E&D Rule-1973 or seek written permission from the next higher authority but in the instant case, a single person acted as an Authorized Officer and Authority. The apex Court remanded such case of Post Office to department for de novo trial. Reliance is placed upon 1996 PLC (CS) 683 and the Service Tribunals also set aside such orders. (1995 PLC (CS) 116. 1995 PLC (CS)
356), 2004 TD (Service) 282. Recent judgment dated 11.03.10 into Appeal No, 456(L)CS/2000 titled "IQRAR HUSSAIN Runner Sheikhupura VS POST OFFICE."
6. We would have upheld the above averment of the appellant had the Authorized Officer been appointed and passed the impugned order. However, we find that in this case no Authorized Officer had been appointed. The competent authority had performed the functions of the Authorized Officer also. In this regard the definition of term Authorized Officer given in the Government Servants (Efficiency and Discipline) Rules, 1973 is referred. It says:-- "2 (3) "authorized officer" means an officer authorized by the authority to perform functions of an authorized officer under these rules or if no officer is so authorized, the authority."
Thus under this definition an authority can exercise powers of Authorized Officer also. ,, The amendment in the definition of Authorized Officer was made vide Establishment Division Notification No, 4/2/77-D.1, dated July, 1978. This amendment was made since necessity was felt for dispensation of the institution of Authorized Officer in appropriate cases.
7. It appears to us that amendment in Rule 2(3) had been introduced to meet an urgent situation.
In other words Authorized Officer may not be appointed in cases having unusual situation. In such cases competent authority can perform the functions of Authorized Officer also. The present case is one involving unusual situation. Herein appellant is accused of instigating Postmasters to agitation and is further accused of using obnoxious language. Thus the competent authority had in the fitness of things, not appointed an Authorized Officer. Non-appointment of Authorized Officer had not caused any prejudice to the appellant. He had boycotted the proceedings himself. Now he is precluded from raising the plea of prejudice.
"8. In 1996 PLC (CS) 683 the apex Court had been pleased to remand the case to the FST for fresh decision after determining the impact of amendment made in the definition of term "Authorized Officer" vide the aforementioned Notification dated July 1978. Before the amendment the competent authority could not assume the role of Authorized Officer. The authority was bound to appoint Authorized Officer/s. However, the appointment of Authorized Officer, after the amendment, did not remain a precondition in all disciplinary cases under the Government Servants (Efficiency and Discipline) Rules, 1973. There may be cases where the misconduct is committed in the presence of the competent authority or the authority is directly or indirectly involved in false allegations levelled by the accused official contributing misconduct on his part. In such cases the appointment of Authorized Officer shall be a futile exercise of power. The competent authority shall be justified in taking action and imposing penalty all by himself. The argument of the appellant relating to non-appointment of Authorized Officer is repelled. In view of law laid down in 1996 PLC (CS) 683, there is no need for any further discussion."
7. Thus there are cases in which Authorized Officer may not be appointed. But this is done in exceptional cases. In the present case there was, no unusual situation' warranting dispensation of appointment of Authorized Officer. The competent authority should have passed an order based on reasons for not appointing Authorized Officer. In our view, the Government Servants (Efficiency and Discipline) Rules, 1973 provide for appointment of an Authorized Officer. Due to his non- appointment the appellant was deprived of at least one channel to defend himself. We are of the considered view that the appointment of the Authorized Officer in this case was essential. The Authorized Officer should have issued charge sheet to the appellant and should have appointed the Inquiry Officer/Inquiry Committee. The appellant was deprived of a valuable right to get another channel for the redressal of his grievances.
8. In the above circumstances, we accept the appeal, reinstate the appellant in service and we direct the respondents to hold denovo proceedings against the appellant. The Authorized Officer shall be appointed. He shall appoint an Inquiry Officer/Committee. On the recommendations of the Authorized Officer he shall pass an independent order not taking guidance from his higher-ups.
The Authorized Officer may himself imposes a minor penalty upon the appellant if circumstances so warrant. The process may be completed, preferably within a period of four months from the date a copy of the judgment is received in the office of the respondents. The payment of back benefits shall depend on the outcome of fresh proceedings. The appellant shall not be given any responsible posting in the meantime till the conclusion of proceedings against him.
9. It is also made clear that if the competent authority himself wants to proceed against the appellant, he may do so. But an order shall be passed by him, based on reasons, for not appointing Authorized Officer.
10.There shall be no order as to costs.
11.Parties shall be informed accordingly.